NATIONAL SECURITY DESERVES BETTER:

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1 NATIONAL SECURITY DESERVES BETTER: "ODD" RECIDIVISM NUMBERS UNDERMINE THE GUANTANAMO POLICY DEBATE Mark Denbeaux Professor, Seton Hall University School of Law Director, Seton Hall Law Center for Policy and Research Counsel for Guantanamo Detainees Paul W. Taylor & Sean Camoni Senior Fellows Bahadir Ekiz, Nicholas Stratton, Philip Taylor, Lauren Winchester, Edward Dabek, Sean Kennedy, Eric Miller, Kelly Ross, Kelly Ann Taddonio Co-Authors & Research Fellows Sara Ben-David, Christopher Fox, Erin Hendrix, Chrystal Loyer, Edward Kerins, Emma Mintz, Richard Tracy Contributors & Research Fellows James Froehlich, Ryan Gallagher, Paul Juzdan, Matt Miller, Lucas Morgan, Jason Stern, Kurt Watkins, Joshua Wirtshafter Research Fellows March 23, 2012

2 Someone on the Suspected list could very possibly NOT be engaged in activities that are counter to our national security interests. 1 1 Todd Breasseale, Public Affairs Officer for Office of the Assistant Secretary of Defense (Detainee Policy), to Jason Leopold, March 05, 2012 (on file with author). ii

3 Executive Summary The government s justification for claiming that released detainees were dangerous rests upon a small number of known recidivists and has ignored the vast number of released detainees whose post-release conduct corroborates the original DoD assessment that most Guantánamo detainees did not warrant detention. Creating and implementing effective detainee release policy will not be possible until a full and balanced account of detainees post-detention behavior is made public. For understandable policy and national security reasons, Americans should care about the judgment and accuracy of the decisions made regarding detainee releases. To that end, an investigation into the post-release conduct of all detainees is crucial. A complete investigation would focus both on the detainees who have done well and those who have engaged in misconduct following their release. Absent that, a complete picture will never emerge. Nonetheless, the government has never attempted to address both sides of this issue, instead only reporting on those who may have engaged in misconduct. Further, government reports generally refuse to identify the supposed recidivists, which makes informed debate about the about policy and practice of releasing detainees impossible. Indeed, the government has now taken the first step towards clarifying the recidivism question. In a remarkable admission, Todd Breasseale, the Public Affairs Officer for the Office of the Assistant Secretary of Defense, has admitted that official statements were deeply problematic by virtue of conflating the percentage of confirmed and suspected recidivists to create what he calls an odd 27-28% number of total recidivists. It is odd precisely because [s]omeone on the Suspected list could very possibly NOT be engaged in activities that are counter to our national security interests. In short, this is a striking admission that the percentage of recidivists repeatedly tossed around, most recently by the House Armed Services Committee, is a substantially inflated statement of potential threats to national security. If the Defense Department or Congress focused on the only number that seems to be meaningful, the number of confirmed recidivists, the correct percentage is reduced to 15.9%. In the absence of better government clarification of its recidivism numbers, the report that follows seeks to provide a more complete picture of post-release GTMO detainees. The findings are quite simple: 1) The government knew very early on that there were mostly low-value detainees in Guantánamo. Then-Secretary of Defense Rumsfeld admitted as much in 2003 in a memorandum to the Joint Chiefs of Staff which complained that Guantánamo was populated with low-level enemy combatants. 2) The government s own actions make clear that it knew the vast majority of detainees were not dangerous because: For many years it released them without regard to anything but diplomatic considerations. The government admitted that it did not keep track of released detainees until at least iii

4 The government admitted that its primary source of information was reporting by the press, not government intelligence. 3) Government reports pointedly ignore the plentiful information regarding the transitions by most detainees to peaceful civilian life. The same pool of information used by the government to create the lists of alleged recidivists reveals hundreds of released detainees who have returned to peaceful, private lives. The press has reported that released detainees have gone to college and law school, entered politics, and written books. They even served as translators for the U.S. Army in Afghanistan and stopped terrorist attacks on the U.S. homeland. None of these stories have been mentioned by the government. Instead, the government merely indentifies 31 individuals as recidivists and gives details from only a handful of the worst cases. 4) The government s various lists of recidivists appear to be an attempt to justify post hoc the Guantánamo detentions for the following reasons: Few new named recidivists have been alleged in recent years. Even the 31 specifically named recidivists is inflated: o DoD admits that of its 31 named recidivists at least 14 are merely suspected. The DoD admits that suspected recidivists may in fact not be recidivists, and should not be conflated with those who are confirmed. DoD admits that it can confirm only 15 as actual recidivists. Many of these allegations are weak or unsubstantiated. o DoD admits that its definition of recidivism has included engaging in propaganda and other activities. o DoD admits that its definition of recidivism does not require any hostile acts toward the U.S. or U.S. interests. o DoD admits that its definition of recidivism applies to released detainees returned to their home country attacking their own citizens. For example, 5 of the 31 named recidivists were Russians who allegedly attacked other Russians in Russia. o DoD admits that its definition of recidivism includes released detainees who not only never attacked the U.S. or U.S. interests, but never left their home country. 5) Acts that constituted reengagement according to the government consisted of conduct that most Americans might not object to and sometimes were things that American s hold quite dear, such as the freedom of speech. Beyond these findings, this report has three main takeaways. First, we show that the entire series of government statements about released detainees is one-sided, omitting the stories of detainees who have been released and have done something positive with their lives since their time at Guantanamo. Second, we explain how the government s statements are internally inconsistent and have created a pattern of errors. Finally, we show that the Director of National Intelligence, the Department of Defense, and the House Armed Services Committee have all knowingly portrayed detainee post-release behavior in an inaccurate manner. iv

5 TABLE OF CONTENTS Executive Summary... iii I. Introduction... 1 II. Methodology and Open Source Database... 2 III. Positive Post-Release Detainee Stories... 3 IV. Defining Recidivism... 6 A. The Changing Government Definition of Recidivism... 6 B. Expansive by Definition... 8 V. Claims of Recidivism A. The Government Can Only Name Fifteen Confirmed Recidivists, But Not All Were Detained At GTMO and Not All Engaged in Post-Detention Attacks Against the U.S. or Coalition Forces B. A Pattern of Errors VI. Government Methods of Detainee Release Have Contributed to Recidivism A. The Worst Error B. Wishful Thinking: False Hope of Continued Detention or Prosecution C. Releases Based on Diplomacy or Security? Releases Disregarded Recidivism Risk Until At Least The Government has at Hand Criteria That More Accurately Estimate Risk of Recidivism Than Nationality Increased Use of Risk Assessment Leads to Lower Recidivism Rates VII. Mission Creep: Recidivism by Engagement in Other Conflicts VIII. Conclusion APPENDIX v

6 I. Introduction The government has consistently used the detention and alleged recidivism of Guantánamo (GTMO) detainees for political purposes since the opening of the detention facility in Donald Rumsfeld, then Secretary of Defense, framed the government s narrative of GTMO as a holding place for the world s worst of the worst. 2 Despite Secretary Rumsfeld s simultaneous acknowledgement that GTMO was filled with low-level detainees who had little intelligence value, 3 the government has continued to use GTMO as a political talking point to garner public support for the war and conceal its detainment of mostly innocent and harmless detainees. The Center for Policy Research, through its review of government documents, has shown the inconsistencies in the government s data on detainees and continued rhetorical abuse of the rates of recidivism. Although the Center attempts to take government documents at face value, the government has been wildly inconsistent with its claims of recidivism. Indeed, the government s own public statements make clear that it is only superficially concerned with GTMO detainees during and after their detainment. As the government s definition of recidivism gets progressively more elaborate, the number of recidivists necessarily increases, and the public s perception of GTMO is further distorted. As a perfect illustration of this point, the list of named confirmed and suspected recidivists has remained stagnant despite the fact that the number of unidentified recidivists keeps rising. The government s inconsistent claims of recidivism show that the government is either incapable of accurately identifying recidivists or is not interested in being accurate. The fact that only two new recidivists have been identified in the past three years reflects the recycling of past incidents of recidivism to create a façade that recidivism is an ongoing, significant problem. In this light, it is no wonder that the government has listed persons as recidivists who were never detained in GTMO. The government, by focusing only on the stories of detainee reengagement, makes no effort to characterize the true nature of former detainees. Just as Secretary Rumsfeld knowingly fabricated the image that GTMO was home to the worst of the worst, the government continues to paint that same picture despite overwhelming evidence to the contrary. The government s inaccurate reporting of recidivism is further exasperated by the government s outright disregard of the success stories of past detainees. For the first time, the Center has identified past detainees who have emerged from GTMO and become successful businessmen, students, translators, and diplomats working to improve the world around them. These success stories, when compared to the government s claims of recidivism, paint a more balanced perspective of who was actually detained. Had the government actually believed that GTMO was home to dangerous criminals, the process of releasing detainees would reflect those concerns. Its actions reveal exactly the opposite. For years, the release of detainees was directly linked to the detainees nationality, 2 See, e.g., Mark Denbeaux, Rumsfeld Knew: DoD s Worst of the Worst and Recidivism Claims Refuted by Recently Declassified Memo (March 3, 2011); Mark Denbeaux, The Guantánamo Detainees During Detention: Data from Department of Defense Records (July 10, 2006). 3 Memorandum from Donald Rumsfeld to Chairman, Joint Chiefs of Staff and Commander, U.S. Central Command (Apr. 21, 2003) (declassified in part Jul. 9, 2010), 1

7 rather than any risk-based assessment. This reaffirms two common trends: first, GTMO recidivism has been mischaracterized from the very beginning, and second, the government was never seriously concerned with the risk of recidivism. The government took a step in the right direct in March 2012, however, when the Director of National Intelligence (DNI) released a new Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba. 4 In this new summary, the DNI begins to disaggregate its previously reported recidivism numbers. By dividing the reengagement numbers by date (pre- and post-22 January 2009), the DNI elucidates differences between the Bush and Obama Administrations. Further, the new DNI summary details the number of detainees characterized as confirmed or suspected recidivists and divides those categories into former detainees who have died, are in custody, or are not in custody. This new summary informs us that 55 confirmed recidivists are not currently in custody, while 44 suspected recidivists are not in custody. Though this summary is a step in the right direction towards greater transparency, it leaves much to be desired, including the release of the names of recidivists, the countries to which they were released, why they were released, and the acts of recidivism they are alleged to have committed. The Department of Defense (DoD) has also taken a step in the right direction by publicly announcing its opposition to the prevailing practice of conflating confirmed and suspected recidivists into a single recidivist category, since a former detainee suspected of reengagement may in fact be perfectly peaceable. 5 Based on the government s own intelligence, a public affairs officer admits that the 27% number is not appropriate because someone on the suspected list could very possibly NOT be engaged in activities that are counter to our national security interests. 6 The issue of the post-release conduct of GTMO detainees is a matter of policy and political significance. If the released GTMO detainees transitioned into peaceful private lives, it would say a great deal about our judgment of who is dangerous and who is not. Furthermore, it would strongly suggest that GTMO never housed the worst of the worst. Perhaps most importantly, placing political considerations ahead of honest review of the facts sabotages any attempt to create effective policy. II. Methodology and Open Source Database The Center s standard practice is to utilize data gathered from public government documents under the assumption that they are accurate. However, because the government has not produced any documents related to non-recidivist former detainees, and because the government itself relies upon press reports for information about former detainees, this report 4 See Appendix A.8. 5 Todd Breasseale, Public Affairs Officer for Office of the Assistant Secretary of Defense (Detainee Policy), to Jason Leopold, March 05, 2012 (on file with author). 6 Id. ( [T]his document makes a distinction between "Confirmed" v. "Suspected." This is particularly relevant because there was confusion in some early media reports conflating the two, coming up with this odd 27-28% number. To be sure, "Confirmed" is more consistent with our actual intelligence data and "Suspected" is a much lower bar, triggering an additional review that is really more akin to a sort of 'early watch' system. Someone on the "Suspected" list could very possibly NOT be engaged in activities that are counter to our national security interests. ). 2

8 broadens the scope of available sources by examining various open source resources as well as relying on public government reports. The Center designed a database to compile, organize, and analyze the data regarding each of the individuals detained in GTMO. For its foundation of this database, the Center utilized the New York Times Guantánamo Docket database of all 779 detainees known to have been detained GTMO since The Center s database collected each detainee s name, ISN, citizenship, custody status, place of birth, date of birth, date transferred from GTMO, and country transferred to from the Guantánamo Docket. The Center also used the government s list of GTMO detainees. 8 It then added the public government information regarding 29 named recidivists from the government s Return to the Fight Fact Sheet including whether, in the government s view, the detainee was a suspected or confirmed recidivist. 9 Finally, it supplemented the database by using open source information gathered from around the internet. The database collects comments from various sources and codes them as positive, negative, or neutral and makes a determination on the quality of the source. In order to gather anecdotes about released GTMO detainees, the Center conducted an internet search of public sources. Research Fellows utilized the Center s detainee database, which contains the names of all detainees ever held in GTMO. The search of the internet sources yielded public information for 208 of the 600 released detainees. This is a not a comprehensive list of all public anecdotes about released detainees. For some detainees, there is an abundance of information regarding their lives after GTMO, not all of which has been included. Because there is public information on approximately one-third of all released detainees, the sample size is significant although, of course, that very fact may raise questions about its representativeness. III. Positive Post-Release Detainee Stories As detainees have been released from GTMO, many have made public statements. For various reasons, news outlets have reported on approximately one-third of all detainees released from GTMO. Many released detainees have been able to put their experiences in GTMO behind them and go on to live productive lives. Some have gone on to careers and studies which include: author, spokesman for Amnesty International, student, construction worker, researcher, call center worker, real estate agent, landlord, lawyer, utilities company controller, electrician, golf groundskeeper, radio commentator, translator, and singer/rapper. Despite this reality, government-released information, including the recent House Majority Report, 10 has focused solely on detainees that have reengaged in terrorist activities post-release. This leaves the public with an incomplete picture, as a full inquiry into released GTMO detainees requires attention to the many success stories. No government report has addressed the success of these former GTMO detainees. 7 Guantanamo Docket, N.Y. TIMES, available at 8 List of Individuals Detained by the Department of Defense at Guantanamo Bay, Cuba from January 2002 through May 15, 2006, available at 9 See Appendix A Leaving Guantanamo: Policies, Pressures, and Detainees Returning to the Fight, HASC Committee Print 112-4, 28, (January 2012), available at bae92e1cdb [hereinafter Leaving Guantanamo ]. 3

9 His life today in the city of Jiddah is comfortably routine. On most days, he wakes before dawn, drinks an espresso made by his wife and takes a 90-minute bus ride to his job as a controller at a utilities company. 11 Many of the released detainees have been able to successfully transition from enemy combatant to productive member of society. The above quotation describes the life of Khalid Sulaymanjaydh Al Hubayshi (ISN 155). He credits his successful post-release life to the Saudi Arabian government s assistance in helping him marry and get his job back. One need only pause for a moment to realize how extraordinary these accomplishments are. In a time where even the most qualified applicants have difficulties finding work in many parts of the world, these individuals have succeeded in the face of such a negative past. For some former GTMO detainees this status Former Guantánamo Detainee is likely a disqualification in the eyes of many employers. For example, Munir bin Naseer (ISN 85) was fired from three positions after employers determined that he had previously been in GTMO. 12 Rather than accept the futility of his position and return to the war, Naseer persevered and found a position as call center worker in Karachi for a Chicago mortgage broker. 13 As released detainees return to and around the war zones, some have chosen to work for peace and security, rather than against it. Taj Mohammed (ISN 902) learned both Spanish and English during his time at GTMO, in addition to the four other languages he knew previously. 14 Mohammed now works with American soldiers in Afghanistan as a translator. 15 When questioned about his lack of support for the Taliban, Mohammed responded The PRT guy [American Provincial Reconstruction Team] makes the building, the school, everything, said Mohammed. The Taliban doesn't make anything for us. Stupid guy, the Taliban. 16 Another released detainee, Abdulsalam Zaeef (ISN 306), is a former Afghan ambassador to Pakistan and has been a key figure in peace talks with the Taliban calling for a unity government. 17 Unlike Mohammed, most released detainees did not leave GTMO with a newly-gained, marketable skill. Therefore, upon their release, some chose to pursue further training and education. Feroz All Abbassi (ISN 24) earned a Bachelors of Arts degree with honors in Social Policy from the London School of Economics and Politics. 18 Hafice Leqeat Manzu (ISN 139) 11 Faiza Saleh Ambah, Out of Guantanamo and Bitter Toward Bin Laden, WASH. POST, March 24, 2008, available at 12 Tom Lasseter, Guantanamo Inmate Database: Munir Naseer, MCCLATCHY NEWSPAPERS, 2008, available at 13 Id. 14 Karen Russo, Exclusive: Former Gitmo Detainee Now Working for U.S., ABC NEWS, Feb. 22, 2010, 15 Id. 16 Id. (Bracketed language inserted by reporter). 17 Olaf Ihlau, Ex-Taliban Official Calls for Unity Government in Afghanistan, SPIEGEL ONLINE INTERNATIONAL, Apr. 12, 2007, Jason Straziuso, Taliban and Afghan Officials Break Bread, THE AGE, Oct. 7, 2008, available at 18 Carol Rosenberg, Newly Released Documents Reveal Fate of Original Guantanamo Detainees, COLLEGE TIMES, Jan. 17, 2008, available at Asim Quereshi, Cageprisoners Annual Report 2010, 4

10 chose to attend law school as a result of his time in GTMO. 19 Others, like All Mohsen Sallh (ISN 221), have studied trades. Upon his release from GTMO, Sallh studied to become an electrician. 20 Others have chosen more creative outlets. Martin Mubanga (ISN 10007) has acknowledged that his time in GTMO made me what I am even if I m not quite sure yet who that person is. 21 Mubanga has channeled his experiences into music and hopes to release his Guantánamo raps. 22 Murat Kurnaz (ISN 61) has written a book on his experiences in GTMO entitled, Five Years of My Life: An Innocent Man in Guantanamo, and works as a city researcher in Bremen, Germany. 23 David Hicks (ISN 2) has also written a book on his time in GTMO, entitled Guantanamo: My Journey. 24 Most notably, Shafiq Rasul, Asif Iqbal, and Ruhal Ahmed (ISNs 86, 87, and 110), commonly known as the Tipton Three, have released a documentary entitled The Road to Guantanamo. 25 Many released detainees have stated a desire to forget their experiences in GTMO and move on with their lives. 26 Abdul Helil Mamut (ISN 278), Abdullah Abduloadirakhun (ISN 285), Emam Abdulahat (ISN 295), Hozaifa Parhat (ISN 320), released detainees who now work as groundskeepers at a golf course in Bermuda, have insisted that they are not bitter about their time spent in GTMO and no longer want to think about the past. 27 Almost all of the ten detainees who have been released in Kuwait have found work. Only Abdallah Saleh Ali al Ajmi (ISN 220) does not fall into this category. 28 According to Khaled al CAGEPRISONERS, Sept. 2, 2010, 19 Tom Lasseter, Guantanamo Inmate Database: Hafiz LiaqatManzoor, MCCLATCHY NEWSPAPERS, June 15, 2008, available at 20 Michelle Shephard, Where Extremists Come to Play, THE STAR, Sept. 19, 2009, available at 21 David Rose, How I Entered the Hellish World of Guantanamo Bay, THE GUARDIAN, Feb. 5, 2005, available at 22 Id. 23 Matt Schofield, Guantanamo Inmate Database: Murat Kurnaz, MCCLATCHY NEWSPAPERS, 2008, available at 24 David Hicks First Interview Details US Torture Allegations, INDEPENDENT AUSTRALIA, Feb. 25, 2011, available at 25 Matt Schofield, Guantanamo Inmate Database: Ruhal Ahmed, MCCLATCHY NEWSPAPERS, June 15, 2008, available at 26 Id.; Jumah al Dossari, I m Home, But Still Haunted by Guantanamo, WASH. POST, Aug. 17, 2008, available at (ISN 261); see supra note 22 (278, 285, 295, and 320); Andy Worthington, Sami al-haj: The Banned Torture Pictures of a Journalist in Guantanamo, Apr. 4, 2008, (ISN 291). 27 James Whittaker, Praise be to Allah, we are in Bermuda Now - Former Guantanamo Bay Prisoners Swap Jumpsuits for Bermuda Shorts, THE TELEGRAPH, Oct. 21, 2009, available at Andy Worthington, Guantanamo s Uighurs in Bermuda: Interviews and New Photos, June 6, 2009, 28 See infra Section VI(A): The Worst Error. 5

11 Odah, founder of the Kuwaiti Family Committee and father of Fawzi al Odah, 29 the remaining nine released Kuwaiti detainees are married and he believes all have children. These released detainees are: Omar Rajab Amin (ISN 65), Nasser Al Mutairi (ISN 205), Saad Al Azmi (ISN 571), Mohammed al Dehani (ISN 229), Kamal Al Kandari (ISN 228), Khalid Al Mutairi (ISN 213), Fouad Mahmoud al Rabiah (ISN 551), Abdulaziz Al Shammeri (ISN 217), and Adel Zamel Abd al Mahsen al Zamel (ISN 568). 30 The difficulties faced by released detainees choosing not to reengage upon their return are most poignantly stated by Alif Khan (ISN 673). After refusing an offer to join the Taliban upon his release from GTMO, Khan stated, [t]hey said if they got the opportunity, they would kill me[.] 31 As a result, Khan has been unable to rebuild his life in Afghanistan and has been forced to relocate away from his home and his family. 32 In the face of these types of threats and hardships, it is impressive that so many detainees have been able to resist engagement or reengagement. It is remarkable to see how many former GTMO detainees have not allowed their pasts to dictate their futures. These stories have been conspicuously absent from government-released information. Although far less exciting than reports of reengagement by released detainees, these positive stories are no less revealing. A picture of detainee reengagement will never be complete until the recidivists are contrasted with the success stories. IV. Defining Recidivism A. The Changing Government Definition of Recidivism The changing definition of detainee recidivism is just one way the government masks the true picture of post-release detainees. In a DoD news release from July 2007, recidivism included those that have returned to militant activities, participated in anti-u.s. propaganda or other activities through intelligence gathering and media reports. 33 In this release, the government noted that it was aware of a number of recidivists despite not generally track[ing] ex- GTMO detainees after repatriation or resettlement. 34 The most recent government definition of recidivism from the March 2012 DNI Summary is more elaborate: Definition of Terrorist or Insurgent Activities. Activities such as the following indicate involvement in terrorist or insurgent activities: planning terrorist operations, conducting a terrorist or insurgent attack against Coalition or host-nation forces or civilians, conducting a suicide bombing, financing terrorist operations, recruiting others for terrorist operations, arranging for movement of individuals involved in terrorist operations. It does not include mere communications with individuals or organizations including other former 29 from Jenifer Fenton, Freelance Journalist (Feb. 11, 2012) (on file with author). According to Ms. Fenton, Fawzi al Odah (ISN 232) remains held in Guantanamo as does one other Kuwaiti, Fayiz Al Kandari. 30 Id. 31 Tom Lasseter, Guantanamo Inmate Database: Alif Khan, MCCLATCHY NEWSPAPERS, 2008, available at 32 Id. 33 Appendix A.2 34 Id. 6

12 GTMO detainees on issues not related to terrorist operations, such as reminiscing over shared experiences at GTMO, communicating with past terrorist associates about non-nefarious activities, writing anti-u.s. books or articles, or making anti-u.s. propaganda statements. 35 To be considered a confirmed case of recidivism requires [a] preponderance of information which identifies a specific former GTMO detainee as directly involved 36 in terrorist or insurgent activities. 37 To be considered a suspected recidivist requires [p]lausible but unverified or single-source reporting indicating a specific former GTMO detainee is directly involved in terrorist or insurgent activities. The newer definitions expand the scope of recidivism to include insurgent activities. The 2010 and 2012 definitions also include for the first time the assertion that such activities are alleged to have been conducted against Coalition or host-nation forces. This appears to refer to the situation in Afghanistan, though it is unclear whether the elements following this in the definition (suicide bombings, financing terrorist operations, et al.) are also in reference to Afghanistan. If so, this would contradict previous reports of recidivism which included actions carried out in other countries, such as Russia, and which were not attacks against the U.S., the Coalition, or Afghan forces. The evolution of the standard by which recidivism is defined is discussed below in Section IV(B). The 2012 Summary also asserts, consistent with the government statement of April 2009, that the definition of recidivism does not consider mere communications or writing anti-u.s. books or articles, or making anti-u.s. propaganda statements to be recidivist acts. This contradicts past reports on recidivism which expressly included anti-u.s. propaganda in the definition. 38 In fact, the 2007 report cited as examples of anti-american behavior the Tipton Three and their discussions of their experiences in GTMO for Michael Winterbottom s commercial film, The Road to Guantánamo. 39 However, because of the government s failure to identify individuals, it remains unclear whether the government has retroactively accounted for the change in definition and subtracted those who did not engage in terrorist attacks, but participated only in propaganda. 35 Appendix A.8 (emphasis added to highlight changes from previous definitions). The 2012 definition closely resembles the definition from See Appendix A On its face, this would seem to be no different from direct participation in hostilities in non-international armed conflict. See generally Direct Participation in Hostilities Under International Humanitarian Law, ICRC (2009). However, Harold Koh, Legal Adviser to the Secretary of State, has stated that the U.S. is in compliance with the ICRC interpretive guidance, which excludes mere recruiters, trainers, financiers and propagandists who have no direct nexus to hostilities, as would planning or commanding. Harold Koh, Legal Adviser, Department of State, The Obama Administration and International Law, Keynote Address at the Annual Meeting of the American Soc y of Int l Law (25 Mar. 2010) ( [O]ur general approach of looking at functional membership in an armed group has been endorsed not only by the federal courts, but also is consistent with the approach taken in the targeting context by the ICRC in its recent study on Direct Participation in Hostilities (DPH)."). Koh s statements seem to be in conflict with the Director of National Intelligence (DNI) definition of confirmed recidivists, as the DNI defines directly involved to include recruiters, trainers, and financiers. 37 See Appendix A See Appendix A. 39 See Appendix A.1. 7

13 In stark contrast to previous DNI Summaries, the March 2012 Summary attempts to break down the recidivism numbers in table form. 40 Specifically, the table lists the reengagement numbers based on pre-january 22, 2009 and post-january 22, 2009 (to coincide with an Executive Order issued by President Obama). 41 This date also coincides with President Obama entering into office, providing a clearer view of reengagement numbers during the Bush and Obama Administrations. Thus, since President Obama took office, three detainees are confirmed recidivists (4.5%) while two are suspected (3%) of the 67 total releases. 42 Under President Bush s tenure, 532 detainees were released, 92 of which are confirmed recidivists (17.3%) while 70 are suspected (13.2%). 43 In addition, the table shows that the DNI considers dead former detainees when compiling the recidivist numbers. 44 In total, of the 599 detainees released from GTMO, 95 are listed as confirmed recidivists (15.9%) while 72 are suspected recidivists (12%). 45 Finally, and notably, the 2010 and 2012 DNI Summaries differ from previous summaries 46 because they offer an assessment of the likelihood that detainees will engage in terrorism and communicate with persons in terrorist organizations. 47 The DNI concludes that if additional detainees are transferred without specific conditions met, some will reengage. 48 The DNI also notes that transfers to countries with instability and ongoing conflicts pose a particular problem. 49 Further, the DNI acknowledges that former GTMO detainees routinely communicate with each other but the reasons span from the mundane... to the nefarious. 50 In assessing whether or not a detainee has reengaged, the DNI explains that the motives, intentions, and purposes of each communication are taken into account. 51 B. Expansive by Definition The language used by the government and other officials in recent years framed alleged recidivists as returning to the battlefield. 52 Alternatively, the issue had been framed as recidivists return[ing] to militant activities. 53 Beginning with the June 2008 report, the DoD started using the more general reengaging in terrorism for recidivism. 54 Now, the 2010 Summary considers activities against Coalition or host-nation forces to be acts of recidivism. This language of reengagement, terrorism, insurgent, and host-nation retreats from the obvious earlier implication that a detainee had to have engaged in acts against the U.S. or 40 See Appendix A Id. 42 Id. 43 Id. 44 Id. 45 Id. 46 The December 2010 Summary contains similar language, though there are a number of differences in the wording of March Compare Appendix A.7 with Appendix A Id. 48 Id. (emphasis added). 49 See Appendix A Id. 51 Id. 52 See Boumediene v. Bush, 128 S. Ct. 2229, (U.S. 2008) (Scalia dissenting) (Scalia wrote that [a]t least 30 of those prisoners hitherto released from Guantánamo Bay have returned to the battlefield. ). 53 Appendix A Appendix A.4. 8

14 Coalition forces for the DoD to consider him a recidivist. This category shift may also have increased the number of those qualifying recidivists. The shift also means the government has moved away from defining return to the fight in terms of Afghanistan and Iraq. For instance, when Pentagon spokesman Geoff Morrell discussed with reporters detainees returning to the fight he stated, [t]his is [sic] acts of terrorism. It could be Iraq, Afghanistan, it could be acts of terrorism around the world. 55 Whatever the legitimacy of this classification system in the abstract, it does not address the public s concern that detainees released from GTMO might return to the battlefield against U.S. soldiers. According to the current definition, a detainee has reengaged if he is directly involved in any terrorist or insurgent activities against host nation or Coalition forces. It is unclear how host nation should be interpreted. If it means Afghanistan, then it is redundant, since Afghanistan is listed as a member of the Coalition. If it means the place of release or transfer, then it is extraordinarily expansive. For example, applying this definition to the five Russian recidivists highlights several critical flaws. First, by allowing actions by foreign citizens against their own governments to fall under the insurgent activities against a host country definition, the government is greatly expanding the concept of recidivism. The Russian recidivists were Russian citizens that the U.S. returned to the Russian government, who then refused to detain or prosecute them. The former detainees then committed acts against the Russian government (in connection with the Chechnya conflict). Why this scenario concerns the U.S. government enough to qualify it as recidivism in the context of U.S. and Coalition forces fighting al Qaeda is difficult to comprehend. Though there is a supposed link between Chechen rebels and al Qaeda, the in-fighting between Russia and Chechnya is arguably unrelated to U.S. and Coalition fears of recidivism. Further, Russia has only tangentially supplied support for the Coalition, so the actions of the Russian recidivists cannot be argued to be directed at the Coalition or U.S. Including acts against host-nations allows recidivism to encompass much more conduct than a U.S. or Coalition specific definition and supports a conclusion that the government s actual goal is to report increasingly higher recidivism numbers. Earlier reports were always framed as acts against the U.S. This is confirmed by the fact that the scope of conduct the DoD included in returning to the fight once extended to those former detainees who had merely spoken critically of the Government s detention policy. 56 This expansive notion of recidivism serves only to confuse policy debates and inflame political rhetoric. Given the history of inflated and politically-driven reporting of recidivism, as discussed below, it is fair to ask whether the most recent definition is also politically motivated. 55 See David Morgan, Pentagon: 61 ex-guantanamo inmates return to terrorism. Jan. 13, 2009, available at &sp=true (June 3, 2009). 56 Justice Scalia, the Department of Defense, and the Perpetuation of an Urban Legend: The Truth About the Alleged Recidivism of Released Guantánamo Detainees, at 6, available at 9

15 V. Claims of Recidivism As detainees have been released from GTMO, government officials have made upwards of fifty public statements regarding the behavior of these released detainees. Many of these were made orally by senior administration officials and members of Congress, including members of the Senate Armed Services Committee. In addition, the Department of Defense and the Director of National Intelligence have produced a series of written reports about released-detainee recidivism. This multitude of information has provided the public with a confused and conflicting picture. In early consecutive reports, the number of recidivists varied from two to ten, then to twelve, back down to six, and then back to two, only to rise again. Taken together, it is clear that these statements were presented for political advantage. The first formal statement of alleged recidivists was released in 2006 and received little attention. The next written statement was July 2007 a formal statement that admitted that the DoD had not bothered to keep kept track of released detainees up until that point. That breathtaking statement was followed by another that said that the evidence relied upon was almost exclusively open source intelligence the media. Instead of keeping track of the worst of the worst, the government sat back and left this role to the media. With respect to its previous numbers of claimed recidivist detainees, the DoD has alleged variously: one, several, some, a couple, a few, 5, 7, 10, 12-24, 25, 29, and 30, not in that order. 57 More recently, the DoD has claimed 61 former detainees as returning to the fight. 58 The April 57 See Appendix B. 58 See David Morgan, Pentagon: 61 ex-guantanamo inmates return to terrorism. Jan. 13, &sp=true (June 3, 2009), ( Pentagon spokesman Geoff Morrell said 18 former detainees are confirmed as returning to the fight and 43 are suspected of having done in a report issued late in December by the Defense Intelligence Agency. ) 10

16 2009 claim was 74. As interpreted by the House Armed Services Committee (HASC), the December 2010 Summary states that 150 detainees have reengaged in terrorist or insurgent activities. A more recent statement claimed that 161 of the 599 released detainees have reengaged, amounting to 27%. 59 The HASC then published a report reiterating this claim. 60 However, a DoD spokesman recently characterized this as an odd conflation of two distinct categories, and indicated that the most recent trustworthy rate is 15.9%. 61 Furthermore, a timeline of publicly cited numbers reveals sudden, unexplained spikes and decreases, as well as a large and persistent discrepancy between the number cited by public officials and actual names of those detainees confirmed as having committed post-release terrorist acts. 62 A. The Government Can Only Name Fifteen Confirmed Recidivists, But Not All Were Detained At GTMO and Not All Engaged in Post-Detention Attacks Against the U.S. or Coalition Forces The various DoD statements regarding the number of recidivist detainees consistently fail to identify the overwhelming majority of alleged recidivists, and these statements have proven particularly unreliable in the past. For example, in the July 12, 2007, DoD press release, the 30 recidivist figure reported by the DoD in April 2007 was reduced to five. 63 Specifically, in that report the DoD identified seven prisoners by name, but two of those seven were never in GTMO. 64 The April 2009 Fact Sheet from the DoD reviewed specific cases which were identified in the May 2008 DoD Report. This list is notable for several reasons, all of which 59 See Appendix A Leaving Guantanamo, supra note Todd Breasseale, supra note 4; 2012 Summary of Reengagement, Appendix A See Appendix B. 63 See Released Guantánamo Detainees and the Department of Defense: Propaganda by the Numbers? at 4 [hereinafter Propaganda by the Numbers] available at Revisionist Recidivism: An Analysis of the Government s Representations of Alleged Recidivism of the Guantánamo Detainees, at 3, available at pdf. 64 Id. 11

17 raise concerns regarding the consistency, strength, and accuracy of the DoD s recidivism claims. The April 2009 DoD report, using data from May 2008, asserted that 27 former GTMO detainees had been confirmed as reengaging in terrorist activities and an additional 47 were suspected of reengaging in terrorist activity. 65 However, of the 74 alleged recidivists, the DoD provided names for only 29 detainees. Of those 29 names, only 15 were confirmed as recidivists, at least according to the government. Of the 15 confirmed, one does not appear on the list of detainees in GTMO. 66 Further, two were Russian nationals whose post-detention activities occurred in Russia with no ostensible connection the U.S. 67 After the May 2008 data, the government has not identified by name or ISN any additional alleged recidivists until the House Majority Report. B. A Pattern of Errors The U.S. government has been releasing names of former GTMO detainees deemed to be recidivists since While a total of 31 detainees have been identified as recidivists, only two additional names (Medhi Ghezali and Othman Mohammad Othman) have been identified since The remaining lists of detainees (released in 2006, 2007, May 2008, June 2008, and 2009) are highly repetitive. While each time the government presents its information as new, it has failed or refused to identify most of the claimed recidivists, thus frustrating any efforts at independent verification of the claims. Five detainees have been on each of the government s lists from Mohammed Ismail, Mullah Shazada, Maulavi Abdul Ghaffar, and Mohammed Nayim Farouq all appear on the 2006, 2007, May 2008, June 2008, and 2009 recidivists lists. Abdullah Mahsud appears on the 2007, June 2008, and 2009 under that name, and on May 2008 and 2009 as Said Mohammed Alim Shah. While the 2007 list identified seven alleged recidivists, only two men (Noor and Odijev) had not appeared on previous lists. At the same time, two others previously identified were omitted. Similarly, the May 2008 list included a dozen names, yet only five had not appeared on earlier lists, and one of the 2007 additions was omitted. In June 2008 the government released a list of 13 alleged recidivists. None of these 13 men were newly-identified recidivists. In fact, seven of them were included on the first list released in A subsequent list of alleged recidivists was released in April 2009, which identified 29 former detainees who had reengaged in terrorism. This was the most significant step forward since 15 were newly-identified and had not appeared on earlier lists. Nevertheless, it remains true that the vast majority of claimed recidivists have not been named and therefore their statuses cannot be verified. 65 See Appendix A See List of Individuals Detained by the Department of Defense at Guantanamo Bay, Cuba from January 2002 through May 15, 2006 [hereinafter List of Individuals Detained ], available at 67 See Appendix A.4. The nationalities of named confirmed detainees who can be verified as former GTMO detainees are: Afghanistan, Saudi Arabia 3; Morocco, Russia 2; Kuwait, Turkey, Bahrain, Pakistan 1. 12

18 The government claims there are high numbers of GTMO detainees who have reengaged in terrorism, yet it continues to release inconsistent lists of recidivists using old data and stale information. The use of stale data is troubling for a number of reasons. First, the reliance on stale recidivism data to assert that recidivism is an ongoing problem mischaracterizes the perceived threat. Including past recidivists on a list of current recidivists conflates two distinctly different problems one being a past problem of recidivism, the other being a current recidivism problem. In this regard, rather than assessing the total number of recidivists, the appropriate inquiry should be focused on how many new recidivists there are. After all, policy reflects perceived future threat. If the bulk of recidivists were in fact discovered years ago, then the threat of recidivism looks relatively minor. However, if new recidivists are discovered, but not announced, then the threat is that much greater. The DNI has hinted at this point on several occasions by noting the fact that the overall recidivism rate (whether suspected or confirmed) includes those who are dead or captured. 68 These hints have apparently been insufficient to affect policymaker s view of the risk involved in releasing GTMO detainees, as demonstrated by the HASC report s aggregation of all confirmed and suspected recidivists into a single recidivism rate. 69 The DNI s failure to fully parse the recidivist data leads to the overestimation of risk. This problem could be solved by an indication of the estimated future risk, though no government agency has attempted to do this to date. Second, the use of stale data reaffirms the notion that the government is superficially concerned about the post-release behavior of detainees. The cumulative effect of recycling old data distorts the public s perception of how bad the recidivism rate actually is. The exaggeration of the recidivism problem, accomplished through the use of stale data, is consistent with the government s exploitation of information for political gain. In short, claiming a high rate of recidivism is a continuation of the government s assertion that GTMO housed the worst of the worst. Also troubling are the internal inconsistencies of the lists provided. Each of the four DoD lists of names differs widely from the others in ways that cannot be explained by the passage of time. In terms of confirmed names, the number of names has remained within the range of 7 to 15, while the alleged total, mostly comprised of unnamed individuals, has grown disproportionately. Often, individual names are spelled inconsistently. Only five of the detainees appear on all five lists, 70 and of those five, two (Mohammed Nayim Farouq and Ruslan Anatolivich Odijev) are among the three detainees downgraded to suspected status in the April 2009 report. Thus only three of the seven originally confirmed recidivists are consistently confirmed. These status changes call into question the accuracy of every previous list, since they directly contradict them all. Three of the cases discussed in the April 2009 DoD report reflect a major reversal from its previous report. Specifically, the statuses of at least three former detainees were changed from confirmed reengagement to suspected reengagement. This is significant because 68 See, e.g., Appendix A.7; see also 2012 Summary of Reengagement, Appendix A Leaving Guantanamo, supra note See Appendix C. 13

19 unverified or single-source... reporting is sufficient to classify a person as suspected of reengaging in terrorist activities. 71 Ruslan Anatolivich Odijev (aka Ruslan Odizhev ): Ruslan Odijev, a Russian, was reportedly killed in a June 2007 battle with Russia s federal Security Service. Russian authorities stated that Odijev participated in several terrorist acts, including an attack in October 2005 in the Caucasus region. His status as confirmed has been changed, without explanation, to suspected reengagement. 72 Sabi Jahn Abdul Ghafour (aka Maulvi Abdul Ghaffar ): Ghaffar was reportedly killed in a raid by Afghan security forces in September The DoD reports that Ghaffar became the Taliban s regional commander in the Uruzgan and Helmand provinces and carried out attacks against U.S. and Afghan forces. However, as of the April 2009 DoD report Ghaffar s status has been changed from confirmed to suspected. 73 In addition, as previously reported by the Center, his name does not appear on the list of detainees in GTMO. While there are two detainees with similar names, both were still imprisoned when Ghaffar was allegedly killed. 74 Mohammed Nayim Farouq: According to the Department of Defense, Farouq, who was released from GTMO before the Combatant Status Review Tribunals (CSRT) were convened, has since become re-involved in anti-coalition militant activity, but has neither been recaptured nor killed. 75 These former detainees were changed from confirmed to suspected without comment. It is unclear why, considering that a July 2007 news release from the DoD listed each of the above three detainees as examples of those who returned to combat against the U.S. and its allies after being released from GTMO. 76 Presumably, these individuals are included in the total of 74 reported in the April 2009 DoD report and in the December 2010 Summary. Given this fact, the flux between these two categories of recidivism and the public concern of the overall number asserted by the DoD creates a serious question as to the consistency of reporting on recidivism. Indeed, this change in status can only reflect one of two possibilities: either these detainees were always merely suspected recidivists previously reported as confirmed, or the DoD has found cause to doubt its own previous evidence upon which the confirmed status was based. An additional detainee, Abdul Rahman Noor, appeared in the first list in July of 2007: Abdul Rahman Noor: The DoD previously claimed that Noor participated in fighting against U.S. forces near Kandahar. The DoD described Noor as participating 71 See Appendix A.4, A See Appendix A Id. 74 List of Individuals Detained, supra note See Appendix A See Appendix A.2. 14

20 in a video interview with al-jazeerah television, wherein he was identified as the deputy defense minister of the Taliban. 77 As of the April 7, 2009 report Noor is no longer listed as a recidivist neither confirmed nor suspected. This may indicate that the DoD agrees with earlier assertions that Mr. Noor was never officially detained at Guantánamo. 78 In any event, this additional DoD shift further raised serious questions regarding the consistency and accuracy of the DoD allegations, and has not been explained in the most recent summary. In addition, the DoD maintained another inconsistency described in earlier reports: Mullah Shazada: According to the Department of Defense, Mullah Shazada [w]as killed on May 7, 2004 while fighting against U.S. forces. 79 However, the name Mullah Shazada does not appear on the official list of detainees. As discussed in Propaganda by the Numbers, it is not at all clear that Shazada is actually a former GTMO detainee. 80 After Shazada s death, the government announced that he had been previously detained in GTMO under the name Mohamed Yusif Yaqub. 81 No official information is publicly available regarding an individual by that name, and Yaqub is the name of seven Afghan detainees for whom date of birth is unknown. 82 In the July 2007 DoD news release, the five Uighurs relocated to Albania were listed as examples of recidivist activity. 83 No press release from the DoD since has retracted that earlier assertion. Five Uighurs ethnic Chinese who practice Islam were sent from GTMO to Albania, where they were taken in as refugees in May Since their release following three years of incarceration at GTMO the five men have lived at the same refugee camp in Tirana, Albania. According to the camp director, Hidajet Cera, [t]hey are the best guys in the place. They have never given us one minute s problem. 85 The U.S. has admitted in open court that none of the Uighurs detained in GTMO are threats to national security, and all but five have been released. The DoD has never retracted its assertion that the Uighurs had been improperly classified as enemy combatants, and has not accused the Uighurs of any wrongdoing since their rendition. Rather, by all accounts, the five Uighur men remain today at the Albanian refugee camp, where they have almost no contact with the outside world. They have been neither re-captured nor killed. 77 See Appendix A See The Meaning of Battlefield : An Analysis of the Government s Representations of Battlefield Capture and Recidivism of the Guantánamo Detainees at 12, available at 79 See Appendix A Propaganda by the Numbers, supra note 59 at See Appendix A See List of Individuals Detained, supra note See Appendix A Department of Defense Press Release. May 5, Retrieved November 26, 2007, at 85 Jonathan Finer, After Guantanamo, An Empty Freedom, Washington Post Foreign Service. October 17, Page A13. Retrieved November 26, 2007, at 15

21 However, one of the Uighur men did write an opinion piece, published in the New York Times, in which he urged American lawmakers to protect habeas corpus. 86 This may be the basis of listing the Uighurs as recidivists since the DoD has sometimes designated political opposition as anti-coalition militant activity. Additionally, in November 2010 a former detainee, Jaber al-faifi, reportedly tipped off Yemeni officials to a bomb plot involving devices planted in printer cartridges and sent via air cargo. 87 Al-Faifi was incarcerated at GTMO until 2007, when he was repatriated to Saudi Arabia. He reportedly rejoined al Qaeda and made his way to Yemen, before turning himself in November and reporting the bombing plot. Under the definition of recidivism in the DNI Summary, al-faifi was likely counted as reengaging in terrorist activities after he was said to have rejoined al Qaeda. The Summary does not make clear whether blowing the whistle on a terrorist bombing plot would remove al-faifi from the ranks of recidivists. Because the Summary does not list names of suspected or confirmed recidivists, al-faifi s status in this count is unknown. Hajji Sahib Rohullah Wakil, an Afghani released from GTMO in April 2008, was classified as a recidivist by the government on its 2009 list of recidivist detainees. 88 However, Wakil s alleged recidivist act is a mere loose association with al Qaeda as a result of his political activities, not terroristic acts. Wakil is a tribal leader in Afghanistan, who works closely with the Afghani government to advocate for the needs of his home province, Kunar province. 89 He works closely with the country s president, Karzai, who has nothing but praise for Wakil. 90 Wakil s classification as a recidivist is likely simply because of his role as a tribal leader, as many tribal leaders in Afghanistan are said to have ties to criminal or insurgent groups. Similarly, the government has identified Mehdi Mohammad Ghezali (ISN 166) as a recidivist and said he was arrested because of his alleged ties to al Qaeda, claiming that a local police chief had referred to him as a very dangerous man. 91 However, in September 2009 it was reported that Ghezali s arrest was a misunderstanding, and he had been part of a group traveling as representatives of a missionary group, and was arrested with a fellow Swedish couple and their two year-old son. 92 Even those exonerated by formal processes are included on the government s lists of alleged recidivists. For example, Ibrahim Sen, who has been identified by the government as a 86 Abu Bakker Qassim. The View From Guantánamo, New York Times. September 17, Retrieved November 26, 2007 at 87 See, e.g., Yemen tip-off came from ex-gitmo detainee, officials say, MSNBC (Nov. 1, 2010), 88 See appendix A Where s Pentagon terrorism suspect? Talking to Karzai. McClatchy, 7 July 2009, available at 90 Id. 91 Leaving Guantanamo, supra note 8 at Swedish former Guantanamo prisoner arrested in Pakistan. Stockholm News, 10 September 2009, 16

22 recidivist was detained for 14 months after his release. 93 classified as a recidivist by the U.S. government. 94 Despite his acquittal, he remains Without speculating as to what conclusions might be drawn from these types of inconsistencies, they are typical of the DoD releases. None is free from error. VI. Government Methods of Detainee Release Have Contributed to Recidivism A. The Worst Error In gaining a fuller picture of the post-release behavior of former GTMO detainees, we need not diminish the role of those who do in fact reengage in criminal and militant activity hostile to U.S. interests. The dangerous nature of some detainees is a reason for fully informed policy debate. Indeed, lacking such debate, the government s policy decisions have lead to the release of some individuals for whom reengagement seems inevitable. Some of the more compelling cases are included below. Unsurprisingly, many alleged recidivists are Afghans taking direct part in the civil war in Afghanistan. Abdullah Mehsud (ISN 92) returned to Afghanistan on March 14, It is unclear why the U.S. released Mehsud, a known Taliban fighter, 95 who quickly took up arms again, leading local and foreign militants in Pakistan's South Waziristan[.] 96 According to the government, Mehsud blew himself up with a hand grenade 97 to avoid capture in July Mohammed Yusif Yaqub, aka Mullah Shahzada (ISN 367), was supposedly released to Afghanistan in May The government lists him as a confirmed recidivist and Taliban commander in Afghanistan who organized a jailbreak in Kandahar and was killed in May 2004 fighting U.S. forces. 100 Yaqub reportedly used a fake name in GTMO and claimed to be an innocent rug merchant. 101 After his release, he seized control of Taliban operations in south Afghanistan, recruiting fighters by telling tales of mistreatment in GTMO Guantanamo VANtanamo. Anadolu Haber, 31 March 2009, available at EwAA&prev=/search%3Fq%3Dhttp://anadoluhaber.blogspot.com/2009/03/guantanamodanvantanamoya.html%26hl%3Den%26client%3Dsafari%26rls%3Den%26prmd%3Dimvns. 94 Id. 95 Andy Worthington, If the US administration had behaved intelligently, ex-guantánamo inmate who blew himself up would never have been released (July 24, 2007), available at 96 Abdul Sattar, Pakistani Militant Leader Is Killed, The Washington Post (July 24, 2007), available at 97 The government document does not say how he killed himself, but this source specifies he killed himself with a hand grenade. Abdul Sattar, Pakistani Militant Leader Is Killed, The Washington Post (July 24, 2007), available at 98 See Appendix A It is still unclear whether Mohammed Yusif Yaqub also went by Mullah Shahzada. 100 See Appendix A Andy Worthington, WikiLeaks and the Guantánamo Prisoners Released from 2002 to 2004 (Part Five of Ten) (July 25, 2011), available at 17

23 The government released Abdullah Gulam Rasoul (ISN 8) to Afghanistan in December Rasoul is listed as a suspected recidivist and Taliban military commander for Afghanistan who organized an assault on U.S. military aircraft in Afghanistan. 103 Another source reports that Rasoul, under the name Mullah Abdullah Zakir, is a top operations officer for the Taliban in southern Afghanistan. 104 Several other alleged recidivists are Saudis who were subject to Saudi Arabia s rehabilitation program but thereafter purportedly traveled to Yemen to join al Qaeda in the Arabian Peninsula (AQAP). For example, Al Ghamdi (ISN 184), a citizen of Yemen, was repatriated to Saudi Arabia on June 24, 2006, and was put through the Saudi rehabilitation program. 105 He soon disappeared, and in February 2009 he was included as one of eleven former GTMO prisoners on the Saudi most wanted militant list. 106 In May 2010, al Ghamdi was featured in an al Qaeda video in which he was described as an operational commander. 107 Mazin Salih Musaid Al Awfi (ISN 154) and Said Ali Jabir al Khathim Al Shihri (ISN 372) are alleged leadership figures in AQAP. 108 According to one source, al Awfi was arrested by Yemeni authorities in 2009 after appearing in a video with al Shihri. 109 Al Shihri has yet to be captured and is believed to be the deputy leader of AQAP. 110 He may have been involved in the attack on the U.S. Embassy in Yemen in September Among those recidivists not named on the government s various lists but discovered by the Center from public sources are Saudis Yusef al-shihri (ISN 114), Fahd Jutayli (ISN 177) and Ibrahim Sulayman al Rubaish (ISN 192). Yusef al-shihri, brother-in-law of Said al-shihiri, was reportedly killed by Saudi forces crossing from Yemen to Saudi Arabia, while disguised as a woman and wearing a suicide bomb prisoners-released-from-2002-to-2004-part-five-of-ten/. Wikileaks information was not used for this report, nor is the information taken from Worthington s article based on Wikileaks information. 102 Id. 103 See Appendix A Pamela Hess, Abdullah Ghulam Rasoul, Former Gitmo Detainee, Now A Taliban Leader, The Huffington Post (Mar. 10, 2009), available at Andy Worthington, Othman Al Ghamdi (ISN 184), Cageprisoners (Oct. 31, 2011), available at Id. 107 Id. See also Thomas Joscelyn, Former Gitmo detainee featured as commander in al Qaeda tape, The Long War Journal (May 28, 2010), available at See Appendix A Yemen arrests al Qaeda member once held at Gitmo, CNN World (Feb. 18, 2009), available at Thomas Joscelyn, Saudi Gitmo recidivists, The Long War Journal (June 21, 2010), available at See also Russell Goldman, Does Rehab for Terrorists Work?, ABC News (Jan. 1, 2010), available at Id. 18

24 belt. 112 The Saudi Interior Ministry reported that DNA tests had confirmed that Al Jutayli, released in 2007, was one of the several militants killed on September 14, 2009, 113 when a bomb under construction accidentally detonated. 114 Rubaish was placed in a reintegration program, but traveled to Yemen and is now reportedly a senior ideologue and theologian for AQAP. 115 In addition to the Saudi recidivists, other Arab states have seen recidivists. For example, Abdallah Saleh Ali al Ajmi (ISN 220), was a Kuwaiti released in November After his repatriation, al Ajmi married and had a child, but within three years conducted a suicide bombing in Mosul, Iraq that resulted in the deaths of numerous Iraqis. 116 Three of five Russians listed by the government as either confirmed or suspected recidivists, Abdullah Kafkas (ISN 82), Ravil Shafeyavich Gumarov (ISN 203), and Timur Ravilch Ishmurat (ISN 674) were alleged to have been involved in the bombing of a natural gas pipeline within one year of their release. 117 Another, Ruslan Anatolivich Odijev (ISN 211), was reportedly killed while resisting arrest. 118 The reengagement of these individuals and others, and the death and damage that resulted, may have been greatly reduced if the government had conducted proper risk assessment and made release contingent upon such assessment. Instead, as described below, most releases appear to have been based upon diplomatic and political expediency. B. Wishful Thinking: False Hope of Continued Detention or Prosecution The House Armed Services Committee Report 119, while failing to contribute to our knowledge of the recidivism rates or provide new information regarding former GTMO detainees, does point out the failures and the confusion regarding the transfer of detainees out of GTMO. The report outlines the chaotic situation that existed as the U.S. government attempted to rid itself of some detainees and relieve the diplomatic pressure from abroad, and shows how various department and sometimes individuals within those departments were working toward different goals in the transfer of detainees out of GTMO Ministry: 3 Saudi militants killed in blast abroad, AP, Monday, January 18, 2010; 10:18 AM (Available at Biography of Abu Yaqin al-qassimi (Fahd bin Saleh al-jutaili), Peninsula Martyrs Series, Issue 6 (June 22, 2011) (available at Andy Worthington, Identification of ex-guantánamo suicide bomber unleashes Pentagon propaganda (May 11, 2008), available at See Appendix A date= See Leaving Guantanamo, supra note 8. 19

25 While the DoD was focused on minimizing the risk of making the disastrous mistake of releasing a detainee with the potential for killing Americans... or who had significant intelligence value yet to be exploited, 120 Defense Secretary Donald Rumsfeld was pushing to transfer detainees to other countries for further detention and/or prosecution. 121 There was a process agreed upon between the State and Defense Departments on how to proceed with detainee transfers. 122 However, since some detainees were released with orders from Secretary Rumsfeld, each country that received detainees did so under different restrictions and terms, and sometimes over the objections of the CIA, the Pentagon, and the Department of Justice. 123 After seven detainees were released to Russia, the Defense Intelligence Agency placed five on the confirmed reengagement list. 124 The HASC Majority Report states that the finalized transfer agreement included three principal clauses: the detainees would be prosecuted in Russian courts; they would remain incarcerated until the end of America s involvement in Afghanistan; and that American officials could have access to them at any time. 125 The officials interviewed by the committee apparently reported that Russia was to prioritize prosecution and not mere legal detention. 126 Neither happened until after a 2005 attack on a natural gas pipeline. The HASC Majority Report states that when GTMO was established, policy makers believed that the facility s population might easily be reduced by sending detainees to other nations for law of war detention or criminal prosecution. 127 However, the U.S. government still counts detainees acquitted in their home countries as recidivists. For example, Ibrahim Shafir Sen is a former detainee who was transferred to Turkey. 128 After his release in Turkey, Sen was arrested for leading an al Qaeda cell in Van province, but acquitted of all charges. 129 However, despite his acquittal, the DoD counts Sen as a confirmed recidivist. 130 It is clear that the U.S. expected receiving countries to carry the burden of detaining people the some of which U.S. officials believed to be innocent or low level fighters. Conversely, the HASC Majority Report ties the release of many detainees without proper screening to the pressure placed on the U.S. from abroad and domestically. It is also stressed that the U.S. released detainees to certain countries in order to improve relations with those countries, specifically Russia, Saudi Arabia, and the U.K See Leaving Guantanamo, supra note 8 at Id. at Id. at Id. at Id. at Id. at Id. at Id. at See Appendix A See Appendix A See Leaving Guantanamo, supra note 8 at 33. Another example may be that of Ibrahim Shafir Sen. Sen was released by Turkish authorities upon his repatriation, but was arrested again before the Turkish President, Abdullah Gul, was to make a trip to the U.S

26 The Majority Report stresses pressure from abroad and from within the U.S. as the major reason behind the transfer of the majority of detainees from GTMO. However, the report glosses over the fact that Secretary Rumsfeld s goal of transferring detainees in 2003 was to shift detainees out of GTMO to be held or tried by other countries, even though knowledgeable officials in his own department believed that detention of some detainees in GTMO was never warranted. 132 However, while the Secretary of Defense trusted the legal system of the receiving countries enough to transfer detainees without proper evaluation, the DoD does not trust the legal system of the very same countries enough to exclude from its recidivism lists detainees they have acquitted. C. Releases Based on Diplomacy or Security? Because GTMO detainee releases prior to 2006 were made on the basis of nationality rather than factors more appropriate to the estimation of risk, the recidivism rate of this group represents an ideal base-line roughly equivalent to randomized releases. Therefore, a change in release determinations based upon legitimate risk assessments will likely lower the overall recidivism rate. Additionally, risk assessment processes may be used to reduce the incidence of recidivism by providing the law enforcement and intelligence community with information that aids in the handling of released detainees. A threshold question to consider is what is meant by a recidivism rate. As is evident from the government s own [d]efinition of Terrorist or Insurgent Activities, not all reengagement in anti-american activity stands on equal footing. 133 While this definition excludes many lesser forms of reengagement from consideration, it does not draw a distinction between highly damaging activities, such as direct involvement in terrorist attacks on U.S. personnel and interests, and less damaging activities, such as recruitment or propaganda for groups targeting third-party nations. For the purposes of this analysis, risk will be defined in line with the government s apparent usage: the likelihood of engagement in a defined set of activities. Risk assessments made along both axes, likelihood and magnitude, will naturally be more useful in improving outcomes and reducing costs in post-detention management. 1. Releases Disregarded Recidivism Risk Until At Least 2007 In August 2008, the Center for Policy & Research published its Profile of Released Guantánamo Detainees: The Government s Story Then and Now, a report analyzing which 132 See Leaving Guantanamo, supra note 8 at See Appendix A.6. For the purposes of this assessment, activities such as the following indicate involvement in terrorist or insurgent activities: planning terrorist operations, conducting a terrorist or insurgent attack against Coalition or host-nation forces or civilians, conducting a suicide bombing, financing terrorist operations, recruiting others for terrorist operations, arranging for movement of individuals involved in terrorist operations, etc. It does not include mere communications with individuals or organizations including other former GTMO detainees on issues not related to terrorist operations, such as reminiscing over shared experiences at GTMO, communicating with past terrorist associates about nonnefarious activities, writing anti-u.s. books or articles, or making anti-u.s. propaganda statements. Id. 21

27 GTMO detainees were to be released between early 2002 and late This report found that, although the U.S. government kept track of several criteria that it claimed bear on detainee dangerousness in one form or another, the actual pattern of releases was based solely upon the nationality of the detainee. It is impossible to know the reason for this pattern of releases from the data that is publicly available. 135 It is possible the government believed nationality was the most reasonable measure of future dangerousness, despite its collection of other data. However, it is more reasonable to assume that this pattern was due in large part to diplomatic pressure and expediency. For example, detainees from traditional U.S. allies were released on average one year earlier than nationals of post-soviet nations, who were in turn released ten months earlier than Arab nationals. 136 This trend reflects the general levels of influence that each of these groups wields over the U.S., as well as the levels of cooperation in the decade after 9/11. As another example, Pakistani and Afghani detainees were released much earlier than other nationalities. In the case of Afghanistan, the number of detainees actually released rather than sent home for continued incarceration indicates that this was largely due to mistaken identity an effect of the fog of war. 137 In the case of Pakistan, however, the high rate of continued incarceration 138 indicates that the early releases were likely one of the many bargaining devises used to secure Pakistan s continued cooperation in the War on Terror. The cases of Yemeni and Saudi Arabian detainees provide further examples. The early release of Saudi detainees relative to other Arabic-speaking nations 139 is likely a result of Saudi Arabian oil wealth and the country s key role in the War on Terror. 140 Yemen, by contrast, is a poor, weak nation beset by its own Islamist radicals (now AQAP). It is, therefore, not surprising that Yemeni detainees have been the group least likely to be released. 141 It is therefore apparent that diplomatic expedience was the primary factor in determining which detainees would be released in the period between GTMO s opening and the publication of the release data in late PROFILE OF RELEASED GUANTÁNAMO DETAINEES: THE GOVERNMENT S STORY THEN AND NOW [Hereinafter, Then and Now ], available at Data published on wikileaks.org is not included in this analysis, due to the Justice Department s interpretation of a court-issued protective order by which the author is bound. 136 See Then and Now, supra note 128, at Id. at Id. at Id. at See, e.g., AHMED RASHID, TALIBAN, ; AHMED RASHID, DESCENT INTO CHAOS, 111, 161, 186, 233; Sean M. Maloney, ENDURING THE FREEDOM A ROGUE HISTORIAN IN AFGHANISTAN, p See Then and Now, supra note 128, at

28 2. The Government has at Hand Criteria That More Accurately Estimate Risk of Recidivism Than Nationality There are factors other than nationality known to the government that could have more accurately estimated the risk of recidivism. Indeed, significant differences exist between detainees that are very likely beneficial to estimating this risk with relatively high rates of accuracy, including at a minimum the information obtained during the CSRT process. With the exception of 201 detainees released prior to the CSRT process, data is available for all detainees regarding their suspected affiliations with terrorist/insurgent groups, how they are connected to that organization, and the number of hostile acts committed against the U.S. prior to detention. This data was originally published by the DoD in the Unclassified Summaries of the Classified Evidence (R1), used to support the detention of each detainee during the CSRT process. In addition, the Combating Terrorism Center at West Point (CTC) published a report in July 2007 that drew even finer distinctions between the types of acts alleged on the R The CTC found that the information on the R1 could be classified into 12 factors in three categories (high, medium, and low risk). Their factors include such information as training camp attendance, combat weapons training, commitment to violent jihad, small arms training, and operationally relevant travel. While the CTC s analysis of this information is somewhat suspect, 143 such fine granulation is useful in assessing risk both in terms of likelihood and magnitude. It should be emphasized that the above examples make use only of the publicly available, unclassified data. Further detainee risk-assessment information has reportedly been leaked to the public by the anti-secrecy website Wikileaks. Vast amounts of other data is available to those who will be making the determinations regarding which detainees are released. 144 This information has been collected and made available to policy-makers since early Increased Use of Risk Assessment Leads to Lower Recidivism Rates Increased use of risk assessment in determining which detainees will be released can lead to reduced recidivism in a variety of ways. First, and most directly, by culling out the detainees who pose the greatest risk of recidivism, the overall incidence of recidivism will decline. Under such a scenario, the review process will determine in each case if the risk of recidivism is too high to warrant release. Therefore, those most likely to re-engage in terrorism or insurgency against the U.S. or its allies will not be given the opportunity to do so. This will lead to a lower 142 JOSEPH FELTER & JARRET BRACHMAN, COMBATING TERRORISM CTR, AN ASSESSMENT OF 516 COMBATANT STATUS REVIEW TRIBUNAL (CSRT) UNCLASSIFIED SUMMARIES 34 (25 July 2007), available at Mark P. Denbeaux, Testimony before the Senate Judiciary Committee on C-SPAN: The Empty Battlefield and the Thirteen Criterion (11/08/07); The Empty Battlefield and the Thirteenth Criterion: An Analysis of the Data and Methodology in the Department of Defense's Response to Congressional Request for Justification of the Guantánamo Detentions, available at Guantanamo Review Task Force, Final Report, ii, 5 6 (January 22, 2010), available at Id. 23

29 incidence of such re-engagement overall. This expected decline in recidivism has been born out so far, according to the official information released about alleged recidivists. 146 The latest DNI summary of recidivism among released GTMO detainees claims that 15.9% of the 599 released detainees are confirmed to have reengaged in terrorist or insurgent activities, and another 12.0% are suspected of doing so. 147 However, the DNI summary makes clear that this rate is largely historical. Executive Order 13492, requiring a comprehensive interagency review including full assessment of intelligence and threat information, was promulgated on January 22, Those detainees released prior to January 22, 2009 have had a reportedly high recidivism rate with 17.3% confirmed and 13.2% suspected, while the recidivism rate plummeted by more than three quarters for those released after this date to 4.5% confirmed and 3% suspected. 149 Additionally, the Center s own study of detainee recidivism shows that 20.0% of detainees released prior to 2007 warrant a negative assessment compared to only 12.6% of detainees released later. 150 While this measure is crude, and does not take into account the expected lag between release and reengagement, it comports with the findings of the DNI. 151 Second, and less directly, by particularizing the nature of the risk in each individual case, the risk assessment process can be used to inform the handling of the detainee in the postdetention period. The law enforcement and intelligence community can better allocate resources tracking released detainees. If this information is shared with our foreign partners, then rehabilitation and reintegration programs can be better targeted to the individual detainee in order to further reduce the risk of that detainee rejoining the fight. Lastly, the information produced in the risk assessment process may be used to create or improve other means of reducing the individual or group risk of recidivism. Third, proper risk assessment procedures which estimate the likelihood of engagement in high and low damage activities independent of one another will allow further granulation of the targeting noted above. In doing so, it will lower the risk of highly damaging activities, reducing the risk to U.S. interests in the broader sense. Recidivism rates of detainees released between 2002 and 2006 represent a statistical worst-case scenario. Because risk assessment was not applied in any cognizable form, the effect on recidivism rates was similar to the release of random detainees. With no distinction drawn between high-risk and low-risk detainees, the recidivism rate for this early group will be higher 146 See Appendix A Id. 148 Id. 149 Id. The 2012 Summary also notes that the average delay between release and recidivism is 2.5 years. This delay may account in part to this low rate, but given that more than 2.5 years have passed since January 22, 2009, this effect cannot be the whole story. Even if this rate is doubled over time, the more than 2:1 disparity between pre- and post-january 22, 2009 recidivism is stark. 150 This percentage most likely overestimates recidivism among those released using risk-based procedures since the interagency review process was only put in place by Executive Order on January 22, 2009, and the Periodic Review Boards (which only release detainees who do not pose a significant threat to the security of the United States ) were not put in place until A more complete analysis accounting for these problems will be produced at a later time. 24

30 than any subsequent group applying a risk assessment. Recidivism rates for those released based on some form of risk assessment will be reduced by limiting the number of high-risk releases, as is clear from the stark disparity in recidivism between Bush-era and Obama-era releases. In addition, the risk assessment process can aid in prevention by providing information to law enforcement agencies, the intelligence community, and foreign partners who are involved in handling former detainees. VII. Mission Creep: Recidivism by Engagement in Other Conflicts Under any of the various characterizations of recidivism, from return to the battlefield to the DNI s current definition of reengagement, only those actions that are hostile to U.S. interests should concern U.S. policymakers. This is evident in the DNI definition, which restricts reengagement to acts against coalition or host-nation forces or civilians. Other activity is outside the scope of the war on terror. Unfortunately, this grouping is vague and prone to expansion, as explained above. Additionally, many of the alleged recidivists reflect this expansive tendency. 25

31 Countries Where Recidivist Detainees Were Released -- Government-Alleged Countries Where Recidivist Detainees Were Released -- Found by CPR Afghanistan (10) 3% 3% 23% 32% Bahrain (1) Kuwait (2) Morocco (2) Pakistan (2) Russia (5) 6% 13% 31% Afghanistan (5) Denmark (1) Morocco (1) Saudi Arabia (6) Figure 1 16% 6% 7% 3% 7% Saudi Arabia (7) Sweden (1) Turkey (1) Figure 2 38% 6% 6% Tajikistan (1) Yemen (2) Figures 1 and 2 show the percentage of alleged recidivists who were transferred or released to various countries, as provided by the government and independently discovered by the Center, respectively. All of the detainees in each chart were citizens of the countries to which they were sent with one exception: a Yemeni citizen listed among the government s 31 was sent to Saudi Arabia following his release from GTMO. Additionally, two Afghanis had dual citizenship: One Afghani was also British, and another Afghani was Bangladeshi. In the following, because of the small sample size of the government s list, the combined list of those alleged by the government and those found by the Center will be used unless stated otherwise (See Figure 3) % 2% 2% Figure 1 Countries Where Recidivists were Released 28% 4% 32% 2% Afghanistan Bahrain Denmark Kuwait Morocco Pakistan The majority of alleged recidivists have been sent to either Afghanistan (32%) or Saudi Arabia (28%) following their release from GTMO. However, detainees sent to Russia are statistically the most likely to be recidivists. Five of the seven detainees (71%) sent to Russia appear to have reengaged in hostile acts. 11% 2% 6% Russia As is clear in Figure 4, not 4% 4% all countries to which detainees Saudi Arabia were sent contributed equally to the group of alleged recidivists. Afghanistan is a clear contributor with over 30% of alleged recidivists (See Figure 3). But this actually overstates its role in recidivism. In fact, with only 15 alleged recidivists among its To facilitate comparison this section will use HASC s more inclusive understanding of recidivism combining suspected and confirmed recidivism. See Leaving Guantanamo, supra note 8. 26

32 returned detainees, Afghanistan s recidivism rate is a mere 7% (See Figure 5). Indeed, under the DoD s understanding of recidivism in which only confirmed recidivists should be counted, this rate drops to less than 2% (4 of 202). This is surprising, given that these individuals are returned directly to the state in which the war is being conducted. Following this logic, looking at Pakistan and Afghanistan together results in a battlefield recidivism rate of only 1.88% (5 of 266). 40% 35% 30% 25% 20% 15% 10% 5% 0% Release and Recidivism - Percent of Whole Percent of Confirmed Names Percent of All Named Recidivists Percent of All Released Figure 2 Equally surprising are Saudi Arabia and Russia. Saudi Arabia stands out as another major contributor, comprising 28% of the alleged recidivists. Russia, while not contributing very large numbers, is the third largest, and has the highest rate of alleged recidivism (71%) of the three. 153 However, neither Saudi Arabia nor Russia is a recognizable part of the battlefield. In fact, all of the Russian recidivists committed their acts of recidivism in Russia against Russians or the Russian state. Many Americans may question how such examples of clearly domestic terrorism fit into the strategic interests of the U.S. 100% 80% 60% 40% 20% 0% Release and Recidivism - Percent of Whole Alleged Percent of Released Figure Denmark and Sweden have higher recidivism rates, each at 100% (see Figure 5). However, only one detainee has been released to each. 27

33 Nor is it clear that the alleged recidivism is in general reengagement with the U.S. or its Coalition partners. Of the 12 countries from which governmentalleged recidivists originate, two (Saudi Arabia and Tajikistan) are not listed as Figure 4 2 Number of Countries with Recidivists Afghanistan OEF/ISAF Figure 5 Overflight Overflight/ Humanitarian Humanitarian No Contribution Non-Coalition 2 Number of Confirmed Recidivists Afghanistan OEF/ISAF Overflight/ Humanitarian No ContribuLon either members of the Coalition (according to CENTCOM) or ISAF. Another two (Yemen and Morocco) have provided no cognizable support to the U.S.-led Coalition at war in Afghanistan. 154 Of the remaining eight countries from which alleged recidivists originate, two (Russia and Kuwait) provide only minimal support. According to CENTCOM, Russia provided humanitarian support early in the war. For example, it built a pontoon bridge in 2002 to aid in the delivery of supplies from Tajikistan. It also built a hospital later in 2002, but has since provided no further support. 155 Kuwait, meanwhile, has provided only basing and port facilities, and even this is at best only indirectly linked to the war in Afghanistan. 156 This leaves only five states aside from Afghanistan itself from which recidivists originated: Bahrain, Denmark, Pakistan, Turkey, and Sweden. Interestingly, of these, only Turkey has contributed ISAF Troops since 2007, 157 and none of these states has contributed troops to the OEF (non-nato) mission in Afghanistan since at least Even though a plurality of the states from which recidivists hail were contributing members of the U.S.-led Coalition in Afghanistan, these states contributed only a remarkably small number of the total number of confirmed recidivists. The largest group of recidivists comes from Afghanistan itself, with a total of four recidivists. The next largest group contains those from states that provided little or no contribution to the Coalition. Another three are citizens of the non-coalition member Saudi Arabia. Only three of the confirmed recidivists come 154 Yemen may be included in this Coalition if it is interpreted to mean the broader, worldwide war on Al Qaeda, since it is generally believed that the US has repeatedly conducted drone strikes in Yemen with its government s approval. However the same logic would include Somalia in the Coalition, since the US has reportedly conducted several drone strikes in Somalia against Al Qaeda-affiliated targets Kuwaiti basing and port facilities support actions taken to combat instability in the Arabian Peninsula ISAF placemat archives, available at

34 from troop-contributing Coalition partners other than Afghanistan. Even including suspected recidivists and those discovered by the Center, only six alleged recidivists come from troopcontributing Coalition partners other than Afghanistan. While the U.S. clearly should take care to avoid unnecessary burdens to all of its neighbors in the international community, such as returning to them detainees known to pose a significant risk of engaging in hostilities, the distribution of nationalities of those alleged to have returned to the fight or reengaged in hostilities in the Global War on Terror requires that the question be asked: How far afield does this war range? Many Americans believe that, while the situation in Afghanistan and Pakistan warrants inclusion within the U.S. s war on al Qaeda and the Taliban, situations such as those found in Turkey, Russia, and Saudi Arabia are more appropriately handled by those states own law enforcement agencies. The U.S. government has not yet articulated its reasons for implicitly including such a broad array of nations within the ambit of its definition of the Coalition, nor has it explained its inclusion of acts of domestic terrorism or criminality with no apparent connection to Afghanistan or the U.S. within the definition of reengagement in the war. Such a failure leaves policymakers with poorly defined parameters in which to determine how to best guide the nation through this quandary. VIII. Conclusion It is unclear what value a government report focusing solely on negative behavior of released-detainees has beyond propaganda. If the government wished to engage in an analysis of post-release behavior of detainees, in order to determine future policy, it would require an examination of both recidivists and non-recidivists. As this is not the path the government has taken, it is clear that the identification and reports on recidivisms exist to support the decisions of the government both in GTMO and in the War on Terror. Until the government 1) examines who the recidivists are and other characteristics about them and 2) acknowledges there are many detainees who live peaceful, private non-recidivist lives, the policies applied to the release of current detainees will remain insufficient. 29

35 APPENDIX A The DOD has released eight public statements of recidivism numbers including four lists of allegedly recidivist detainees. Those eight documents are reproduced in this Appendix as follows: A.1 July 10, 2006 A.2 July 7, 2007 A.3 May 20, 2008 A.4 June 13, 2008 A.5 April 7, 2009 A.6 December 7, 2010 A.7 September 20, 2011 A.8 March 5, 2012

36 APPENDIX A.1

37

38

39 APPENDIX A.2 The following is an exact reproduction of the Department of Defense news release of July 12, 2007, titled Former Guantánamo Detainees Who Have Returned to the Fight. This press release was accessible as of November 26, 2007 at but has since been removed without comment. Former Guantánamo Detainees who have returned to the fight: Our reports indicate that at least 30 former GTMO detainees have taken part in anti-coalition militant activities after leaving U.S. detention. Some have subsequently been killed in combat in Afghanistan. These former detainees successfully lied to U.S. officials, sometimes for over three years. Many detainees later identified as having returned to fight against the U.S. with terrorists falsely claimed to be farmers, truck drivers, cooks, small scale merchants, or low level combatants. Other common cover stories include going to Afghanistan to buy medicines, to teach the Koran, or to find a wife. Many of these stories appear so often, and are subsequently proven false that we can only conclude they are part of their terrorist training. Although the U.S. government does not generally track ex GTMO detainees after repatriation or resettlement, we are aware of dozens of cases where they have returned to militant activities, participated in anti-u.s. propaganda or other activities through intelligence gathering and media reports. (Examples: Mehsud suicide bombing in Pakistan; Tipton Three and the Road to Guantánamo; Uighurs in Albania) The following seven former detainees are a few examples of the 30; each returned to combat against the U.S. and its allies after being released from Guantánamo. Mohamed Yusif Yaqub AKA Mullah Shazada: After his release from GTMO on May 8, 2003, Shazada assumed control of Taliban operations in Southern Afghanistan. In this role, his activities reportedly included the organization and execution of a jailbreak in Kandahar, and a nearly successful capture of the border town of Spin Boldak. Shazada was killed on May 7, 2004 while fighting against U.S. forces. At the time of his release, the U.S. had no indication that he was a member of any terrorist organization or posed a risk to U.S. or allied interests. Abdullah Mehsud: Mehsud was captured in northern Afghanistan in late 2001 and held until March of After his release he went back to the fight, becoming a militant leader within the Mehsud tribe in southern Waziristan. We have since discovered that he had been associated with the Taliban since his teen years and has been described as an al Qaida-linked facilitator. In mid-october

40 2004, Mehsud directed the kidnapping of two Chinese engineers in Pakistan. During rescue operations by Pakistani forces, a kidnapper shot one of the hostages. Five of the kidnappers were killed. Mehsud was not among them. In July 2007, Mehsud carried out a suicide bombing as Pakistani Police closed in on his position. Over 1,000 people are reported to have attended his funeral services. Maulavi Abdul Ghaffar: After being captured in early 2002 and held at GTMO for eight months, Ghaffar reportedly became the Taliban's regional commander in Uruzgan and Helmand provinces, carrying out attacks on U.S. and Afghan forces. On September 25, 2004, while planning an attack against Afghan police, Ghaffar and two of his men were killed in a raid by Afghan security forces. Mohammed Ismail: Ismail was released from GTMO in During a press interview after his release, he described the Americans saying, "they gave me a good time in Cuba. They were very nice to me, giving me English lessons." He concluded his interview saying he would have to find work once he finished visiting all his relatives. He was recaptured four months later in May 2004, participating in an attack on U.S. forces near Kandahar. At the time of his recapture, Ismail carried a letter confirming his status as a Taliban member in good standing. Abdul Rahman Noor: Noor was released in July of 2003, and has since participated in fighting against U.S. forces near Kandahar. After his release, Noor was identified as the person in an October 7, 2001, video interview with al-jazeerah TV network, wherein he is identified as the deputy defense minister of the Taliban. In this interview, he described the defensive position of the mujahideen and claimed they had recently downed an airplane. Mohammed Nayim Farouq: After his release from U.S. custody in July 2003, Farouq quickly renewed his association with Taliban and al-qaida members and has since become re-involved in anti-coalition militant activity. Ruslan Odizhev: Killed by Russian forces June 2007, shot along with another man in Nalchik, the capital of the tiny North Caucasus republic of Kabardino Balkaria. Odizhev, born in 1973, was included in a report earlier this year by the New York based Human Rights Watch on the alleged abuse in Russia of seven former inmates of the Guantánamo Bay prison after Washington handed them back to Moscow in As the facts surrounding the ex-gtmo detainees indicate, there is an implied future risk to U.S. and allied interests with every detainee who is released or transferred.

41 APPENDIX A On May 20, 2008, the Subcommittee on International Organizations, Human Rights and Oversight of the House Foreign Affairs Committee held a hearing on this question, among others concerning Guantánamo. At that hearing, considerable skepticism was expressed about the reliability of the cited number of recidivists. The highpoint of the hearing, in this regard, was the production by the Department of Defense of a document (on plain paper, without letterhead), sent by facsimile to Congressman Dana Rohrabacher (R. Cal.). The document, reproduced here as Appendix B.2, was provided to Professor Denbeaux after his testimony.

42 APPENDIX A Available as of June 4, 2009 at:

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45 APPENDIX A This DOD report, dated 4/7/2009, has not been published by the DOD as of this writing. The report was posted online at and referenced in a New York Times article available at

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51 APPENDIX A DNI SUMMARY OF THE REENGAGEMENT OF DETAINEES FORMERLY HELD AT GUANTANAMO BAY, CUBA DECEMBER 7, 2010 Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba The Director of National Intelligence submits this summary consistent with direction in the Fiscal Year 2010 Intelligence Authorization Act, P.L , Section 334, which states: The Director of National Intelligence, in consultation with the Director of the Central Intelligence Agency and the Director of the Defense Intelligence Agency, shall make publicly available an unclassified summary of - (1) intelligence relating to recidivism of detainees currently or formerly held at the Naval Detention Facility at Guantanamo Bay, Cuba, by the Department of Defense; and (2) an assessment of the likelihood that such detainees will engage in terrorism or communicate with persons in terrorist organizations. (1) Intelligence relating to recidivism of detainees currently or formerly held at the Naval Detention Facility at Guantanamo Bay, Cuba, by the Department of Defense As of 1 October 2010, 598 detainees have been transferred out of Department of Defense (DoD) custody at the U.S. Naval Base, Guantanamo Bay, Cuba (GTMO) detention facility. The Intelligence Community assesses that 81 (13.5 percent) are confirmed and 69 (11.5 percent) are suspected of reengaging in terrorist or insurgent activities after transfer. Of the 150 former GTMO detainees assessed as confirmed or suspected of reengaging in terrorist or insurgent activities, the Intelligence Community assesses that 13 are dead, 54 are in custody, and 83 remain at large. On 22 January 2009, the President signed Executive Order 13492, calling for a comprehensive interagency review of the status of all individuals currently detained at Guantanamo Bay. Every decision to transfer a detainee to a foreign country under this review was made after a full assessment of intelligence and threat information. Since the implementation of Executive Order and under the enhanced interagency review process, 66 of the 598 detainees noted above have been transferred. Of those 66 individuals transferred since January 2009, 2 are confirmed and 3 are suspected of reengaging in terrorist or insurgent activities. (2a) An assessment of the likelihood that such detainees will engage in terrorism The Intelligence Community assesses that the number of former detainees identified as 162 Available at f_detainees_formerly_held_at_guantanamo_bay_cuba.pdf

52 reengaged in terrorist or insurgent activity will increase. A February 2010 review of GTMO detainees release dates compared to first reporting of confirmed or suspected reengagement shows about 2.5 years between leaving GTMO and the first identified reengagement reports. Based on trends identified during the past 6 years, the Intelligence Community further assesses that if additional detainees are transferred from GTMO, some of them will reengage in terrorist or insurgent activities. (2b) An assessment of the likelihood that such detainees will communicate with persons in terrorist organizations It is not unusual for former GTMO detainees to communicate with persons in terrorist organizations. The reasons for communication span from the mundane (reminiscing about shared experiences) to the nefarious (planning future terrorist operations). Correspondingly, the Intelligence Community assesses that additional former GTMO detainees will communicate with persons in terrorist organizations. Based on trends identified during the past 6 years, the Intelligence Community further assesses that if additional detainees are transferred from GTMO, some of them will communicate with persons in terrorist organizations. Definition of Terrorist or Insurgent Activities For the purposes of this assessment, activities such as the following indicate involvement in terrorist or insurgent activities: planning terrorist operations, conducting a terrorist or insurgent attack against Coalition or host-nation forces or civilians, conducting a suicide bombing, financing terrorist operations, recruiting others for terrorist operations, arranging for movement of individuals involved in terrorist operations, etc. It does not include mere communications with individuals or organizations including other former GTMO detainees on issues not related to terrorist operations, such as reminiscing over shared experiences at GTMO, communicating with past terrorist associates about non-nefarious activities, writing anti-u.s. books or articles, or making anti-u.s. propaganda statements. Reporting Qualifications for Confirmed A preponderance of information identifying a specific former GTMO detainee as directly involved in terrorist or insurgent activities. For the purposes of this definition, engagement in anti-u.s. statements or propaganda does not qualify as terrorist or insurgent activity. Reporting Qualifications for Suspected Plausible but unverified or single-source reporting indicating a specific former GTMO detainee is directly involved in terrorist or insurgent activities. For the purposes of this definition, engagement in anti-u.s. statements or propaganda does not qualify as terrorist or insurgent activity.

53 APPENDIX A Guantanamo recidivism rate continues to rise, Senate Republican Policy Committee, September 20, Available at

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55 APPENDIX A Available at

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